US Supreme Court and Civil Rights - Topic 4.6

Question 1

What are the arguments for a ‘Living Constitution’?

Answer 1

• The Constitution will quickly become out of date if it’s not interpreted in the light of modern developments; e.g., slavery, LGBTQ+ and women’s rights
• Elected and accountable branches often favour the will of the majority and therefore interpretation of the Constitution can ensure minority rights are also protected
• The Founding Fathers couldn’t have predicted the world that exists today, and some of the words in the Constitution are meaningless without interpretation
• The amendment process is now too difficult to allow the development of the Constitution through elected branches of government
• The principles of the Constitution can be upheld despite the wording of the document

Question 2

What are the arguments for an ‘originalist’ interpretation?

Answer 2

• Interpreting the Constitution makes the Supreme Court a political institution, undermining its independence and legitimacy
• Changes required can be left to the elected and accountable branches rather than risking the misinterpretation by unelected judges
• People are accountable for their actions according to the law. If this law is constantly evolving and changing, it’s not possible for them to know what the law is until after a judge has decided
• The amendment process exists and has been used successfully, how it should be done
• The principles of the Constitution are not as significant as the words and text when determining meaning, and it’s this meaning that should be adhered to

Question 3

What are the issues with judicial activism?

Answer 3

• The Supreme Court is unelected
• Allowing the Court to strike down Acts and actions of the executive, with only limited checks on its own power, breaches separation
• Allowing the Court to strike down state laws ignores the constitutiona principle of federalism
• The Court can overrule its own decisions, even when the Constitution hasn’t changed, suggesting the Court is acting politically, and not neutrally
• Judicial review interprets the Constitution, meaning there are few effective checks on the Court’s power as constitutional amendments are so difficult to pass

Question 4

What are the issues with judicial restraint?

Answer 4

• If the Court defers to elected branches of government, the might allow laws and policies that directly contravene the Constitution to stand
• Given the frequent election cycle, elected branches often shy away from dealing with controversial policy issues or focus only on the will of the majority. The Court is the only branch that can deal with those issues without fear
• The codified Constitution would be outdated if the Court weren’t willing to interpret it with reference to mdern issues
• The power of judicial review could be implied. The Court should therefore act to limit the government as the Founding Fathers intended
• The Constitution is vague and meaningless without interpretation

Question 5

Is the Supreme Court an imperial judiciary?

Arguments that support the case

Answer 5

• The Court is able to make decisions with huge impact on US government and citizens yet is unaccountable
• While justices can in theory be impeached, the likelihood is incredibly low, making the Court unaccountable
• The Court’s power of judicial review often amounts to the final say on any issue as it’s so difficult to overturn a decision
• The Court’s decisions can overturn laws and actions from branches that are both accountable and have a mandate
• These decisions have gone far beyond the original text of the Constitution and created entirely new rights
• Despite being able to hear only a limited number of cases each year, the fact around 8,000 cases are anually brought to the Court allows it a vast choice on what it whishes to rule on

Question 6

Is the Supreme Court an imperial judiciary?

Arguments against the case

Answer 6

• The Court has no way to enforce its own rulings
• The Court cannot choose cases to investigate that have not been brought before it. This includes Acts or actions that it considers to be unconstitutional
• The Court’s rulings can be overturned
• The Court has often shied away from hearing cases in which public opinion is closely divided
• The Constitution provides a single biggest limit on the Court. Regardless of the justices’ personal opinions, cases and decisions must be rooted in the Constitution
• Jusitces are suj=bject to the threat of removal as they only hold their offices during times of ‘good behaviour’, preventing recklessness

Question 7

What are the arguments supporting that the Court is judicial?

Answer 7

• The Supreme Court can only take cases with a constitutional basis and make decisions on the wording of the Constitution
• Members of the Court have legal rather than political expertise
• The Court lacks any power to enforce its decisiosn it makes
• A substantial number of cases are decided 9-0, suggesting the justices must be basing their decisions on something other than their opinions
• The Court adheres to legal principles such as stare decisis

Question 8

What are the arguments supporting that the Court is political?

Answer 8

• The impact of many rulings is inherently political
• The appointment process to the Court is inherently political and seems to be getting more so
• Justices can be identified, and labelled, as ‘liberal’ or ‘conservative’
• The Court accepts amicus curiae briefs, which are documents written by pressure groups to the Court trying to influence the outcome
• The Court appears to shy away from hearing some of the more controversial cases suggesting recognition of the importance of public opinion

Question 9

To what extent has promoting equality been a success in the US?

Answer 9

• President Obama’s DACA executive order allowed some undocumented immigrants to be free from the threat of deportation
• Numerous Court cases have upheld the frequently challenged policy of affirmative action
• The election of Obama, Harris and the appointment of Justice Jackson as wel as increasing numbers of ethnic minorities represented in Congress shows an increasing diversity in government in the US
• The focus of the growing Hispanic population, including projections, has meant increased attention on minority issues
• Generally, minority ethnic voting turnout has increased over the past two decades, despite a slight drop more recently

Question 10

To what extent has the US failed to promote equality?

Answer 10

• President have failed to get any meaningul immigration reform legislation passed, depsite bipartisan support in the Senate
• Segregation remains an issues due to housing patterns. Bush Jr. was accussed of racism in 2005 when the federal government responded slowly to the disaster of Hurricane Katrina, which overwhelmingly affected the minority ethnic populous of New Orleans
• The BLM movement demonstrates the depth of inequality still felt in the US
• The state ban on affirmative action in Michigan. In state where affirmative action has been banned, the number of minority ethnic people attending college has falled
• The wealth gap in the US continues to widen between white and minority ethnic households